The Theory Of Civil Servant's Right Of Resistance

It is an integral part of civil servants system to execute or resist the superior’s decision or order for civil servants. Whether civil servants own the right to resist superior’s illegal command under certain conditions is not only essential for civil servants to protect their own interests, but also of great significance to achieve the final purpose of administration that to serve and safeguard the public and private parties’interests, as well as to improve the situation of the administrative enforcement by law and order. In2006, the Civil Service Law of the People’s Republic of China promulgated and implemented, and its54th article established the system of civil servants right to resist superior’s decision and order. However, whether there is enough systematic support for the application of civil servants right to resist and whether the system value could be achieved in practice, which are worth to be thorough researched.Based upon the questions above, through the analysis of the concept and connotation of civil servants resistance right, the application problems in practice, and legislative and judicial practice of the civil servants right to resist at home and abroad, there is a deep thinking about the theoretical basis of law, applicable principles and conditions, as well as system improvement of civil servants right to resist in this paper.The Chapter I is an overview of the civil servants right to resist, which is divided into four parts. In the first section, firstly, the concept of civil servants right to resist is concluded in accordance with domestic and abroad legislation, a comparison is made among some similar concepts in order to illustrate that "civil servants right to resist" is the most suitable name to describe this kind of right. And then the logistic support and the foundation of civil servants right to resist are illustrated respectively on two aspects that the theoretical development of the right of resistance and the contemporary professional ethics of civil servants, which are in essence the embodiment of the principle of sovereignty of the people and civil servants’moral obligation. In addition, some concepts, including the administrative right of resistance, the citizens’right of resistance and civil servants right of defense, are compared and clarified in order to make a more thorough understanding of civil servants right to resist. In the second section, the administrative law theories reflected in the civil servants right of resistance are proposed, including invalid administrative act theory, administrative action purpose theory and power restriction theory. In Section III, the existence value of civil servants right to resist is discussed in both theory and practice aspects.The application of civil servants right to resist is discussed in Chapter II. Only if certain principles and conditions could be abided and satisfied, then the application of the right shall not be abused to lead to lower administrative efficiency. The applicable principles, the applicable conditions and the undertaking of responsibility are analyzed respectively in these three sections. The applicable principles refined from the general principles of administrative law include the principle of emphasis on public service principles, the principle of administrative efficiency and procedure principle. The applicable conditions, including the elements of legal entity, scope of application and procedure, are generally induced. The undertaking of responsibility belongs to the consequence of the right of application, which directly influences the applicable effects of the system on civil servants right of resistance.In Chapter III, the provisions of the other countries and regions on civil servants right to resist are introduced firstly, which are divided into four theories:absolute obedience theory, opinion statement theory, absolute resistance theory and relative obedience theory. Then the characters of these four theories are demonstrated in order to illustrate that the combination of both opinion statement theory and relative obedience theory is more applicable in the aspect of system construction.The system construction of civil servants right to resist in China is discussed in Chapter IV, focusing on the Article54of the Civil Service Law of PRC. It aims to find out the flaws of the existing legal system on civil servants right to resist in China, and to make some recommendations for how to improve in the future. In Section I, the legislation on the provisions of the civil servants right to resist in China is summarized, and the Article54of the Civil Service Law of PRC is especially interpreted. Then the legal attributes are demonstrated both in right and obligation aspects. After that, the existing flaws of Article54are analyzed. Based on Section I, on the one hand, the recommendations for the improvement of legislation system of resistance right are proposed as to improve its feasibility, for example, making advice and giving response between subordinates and supervisors in formal and making the range of supervisors clear; on the other hand, considering about the civil servants’ own interests, a further improvements of administrative and judicial remedies are proposed in order to form a better protection mechanism for the application of civil servants right to resist.